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Patriot Act blurred in the public mind

By Toni Locy, USA TODAY

Nearly 2½ years after Congress passed the USA Patriot Act, Americans are confused and troubled by the law that is a linchpin in the Bush administration's efforts to identify al-Qaeda operatives and sympathizers in this country. (Related chat, 11:30 a.m. ET: Submit questions for Toni Locy)

A statue of George Washington on the steps of Federal Hall looms over protesters holding up a signs critical of the USA Patriot Act during a demonstration.

By Scout Tufankjian, AP

A USA TODAY/CNN/Gallup Poll suggests that most Americans back the idea behind the Patriot Act, which gives federal agents more latitude to spy on U.S. citizens and non-citizens while hunting terrorists.

But confusion about what the law says and does is complicating the debate over whether the White House and Congress, in a panic over the Sept. 11, 2001, attacks, went too far by passing a law that may threaten civil liberties.

The Patriot Act significantly expanded the power of federal law enforcement by allowing the FBI and CIA to share evidence and by giving terrorism investigators access to evidence-gathering tools that agents in criminal probes have used for years.

But for many people, the Patriot Act has become a catch-all phrase for a range of controversial — and unrelated — anti-terrorism policies of the administration. A majority of Americans, for example, mistakenly believe that the act authorizes military tribunals for foreign terrorism suspects and that it calls for the indefinite detention of "enemy combatants" captured in Afghanistan and on U.S. soil. Those policies are based on the president's war powers in the Constitution.

When they learn what is in the act, many Americans find some of the details unsettling. The USA TODAY survey of 501 adults Feb. 16-17 found that 71% disapprove of a section that allows agents to delay telling people that their homes have been secretly searched.

And about half of those surveyed are uneasy about two other parts of the act: one that allows the FBI to obtain records from businesses, including hospitals, bookstores and libraries, and another that permits federal agents to ask financial institutions whether terrorism suspects have accounts with them.

The Patriot Act, rushed through Congress 45 days after the 9/11 attacks, was controversial from the start. But concerns about it did not register with many Americans until late 2002, when some librarians began warning that it might jeopardize the privacy of library records. Since then, more than 250 communities have passed resolutions critical of the law.

"It's become part of the drinking water in this country that there's been an erosion of civil liberties," Deputy Attorney General James Comey says. "We have divided into two groups: those who think that's OK and those who don't."

The passionate — and often misleading — debate over the Patriot Act is a big reason there is so much confusion about it.

The administration's chief spokesman for the act, Attorney General John Ashcroft, occasionally has blurred fact and fiction in giving the law credit for preventing another terrorist attack on U.S. soil. He also has belittled anyone who has questioned the law and played down how it has expanded the power of federal law enforcement agencies to gather evidence in terrorism and intelligence probes.

Critics of the act, led by the American Civil Liberties Union, have contributed to the misperceptions by glossing over how secret surveillance has long been allowed under other laws. Civil libertarians have lumped the Patriot Act with other anti-terrorism policies, such as the plans for military tribunals.

Both sides have played on the public's fears. Ashcroft says repealing any part of the act would "disarm" America and provide an open door to terrorists. The ACLU says the act allows "innocent people" to be targeted by the FBI, although the group has not found any example of abuse of the law.

Meanwhile, misleading descriptions of the Patriot Act are seeping into popular culture, further perpetuating the myths about it.

What is and isn't in the Patriot Act

The USA Patriot Act has been blamed for policies that are not included in its 342 pages:

What the Patriot Act does

 Allows the FBI and the CIA to share evidence.

 Permits the FBI to ask federal judges on the secret Foreign Intelligence Surveillance Act court for orders to force businesses to turn over records in terrorism or intelligence probes. To get FISA orders allowing other types of searches and surveillance, agents must show "probable cause" that the subject of such a probe is "an agent of a foreign power." Under the Patriot Act, agents must only say that the business records they want are sought in a terrorism or intelligence probe. Businesses may not tell anyone about such orders.

 Allows prosecutors to ask judges to delay "for a reasonable period" telling people that their homes or offices have been secretly searched in a criminal probe.

 Allows U.S. agents in terrorism and intelligence probes to get court orders for "roving" wiretaps, which involve surveillance on various electronic devices a subject uses.

What it doesn't do

 Give the Justice Department power to detain hundreds of Middle Eastern men after the 9/11 attacks. (This was done under immigration laws.)

 Allow the government to hold 650 suspected Taliban and al-Qaeda operatives at the U.S. Naval Base at Guantanamo Bay, Cuba, as "enemy combatants" without access to lawyers or U.S. courts. (President Bush says he can, as commander in chief, hold them as long as the war on terrorism lasts — in essence, indefinitely. His decision is being challenged in cases before the Supreme Court.)

 Allow authorities to hold two U.S. citizens as "enemy combatants" at a Navy brig without charges or access to U.S. courts. (Bush imposed this policy, also based on his war powers under the Constitution. The policy is being challenged in cases before the Supreme Court.)

 Create military tribunals to try non-citizens who are accused of terrorism offenses. (Bush authorized the tribunals in November 2001. The Defense Department is in charge of establishing the rules for the tribunals and running the trials; none has been held so far.)

 Allow FBI agents to enter houses of worship or attend political rallies while investigating terrorism. (Attorney General John Ashcroft made this possible by changing Justice Department rules for investigators.)

Toni Locy

TV scriptwriters are taking literary license with the act by casting it as the latest interrogation-room weapon for fictional cops.

On shows such as CBS' Navy NCIS and NBC's Las Vegas, bad guys have been coerced into cooperating by threats that they would be held under the Patriot Act as "enemy combatants" at the U.S. military base in Cuba, without access to a lawyer. In real life, the U.S. government is holding 650 suspected al-Qaeda and Taliban operatives at the base at Guantanamo Bay.

Such misinformation does not serve the public, says former House majority leader Dick Armey, a Texas Republican who expresses concern about the act's impact on privacy. "Unfortunately," he says, "political discourse was never designed to elevate intellect."

Passed quickly after 9/11

The selling of the Patriot Act began nine days after the 9/11 attacks, when U.S. authorities were expecting another wave of terror assaults. At Ashcroft's insistence, the bill was placed on a fast track rarely seen on Capitol Hill. The House held two hearings, and the Senate Judiciary Committee never took up the bill.

By Oct. 25, 2001, when the bill passed overwhelmingly, Congress was at the center of the nation's first biological-weapons attack. Five people were killed and 17 were sickened when at least four anthrax-laden letters were sent through the U.S. mail. The unidentified killer — who remains at large — sent two of the letters to Sens. Tom Daschle, D-S.D., and Patrick Leahy, D-Vt.

Several Senate Democrats called the bill "flawed" and acknowledged that it might infringe on civil liberties. But only Sen. Russ Feingold, D-Wis., voted against it. He says top Democrats feared that the White House would blame them if terrorists struck again before the bill was passed.

Armey says he failed to persuade House Republicans to break up the bill, so its controversial sections could be considered separately. "I knew we were about to be stampeded off a cliff like a bunch of lemmings," says Armey, recalling his concern about increasing Justice Department authority.

Like Armey, even the Patriot Act's staunchest critics say it is needed to fight terrorism and should not be repealed entirely. But they also say some of its sections should be revised to provide more checks on its use.

In his State of the Union address in January, President Bush underscored the act's importance to his administration by urging Congress to renew 16 sections that are the heart of the law's surveillance powers. They expire Dec. 31, 2005.

Republicans hope the act will resonate as a campaign issue among voters who worry about terrorism. Critics, who have tried to cast Ashcroft as a conservative zealot, hope voters view the law as a threat to civil liberties.

Ashcroft is so confident that voters will back the administration that he has threatened a presidential veto of pending anti-Patriot Act bills while pushing to give law enforcement more authority. He wants Congress to require judges to deny bail for terrorism defendants, and to allow counterterrorism agents to use "administrative" subpoenas, which don't require a judge's prior approval.

But the administration faces a public relations challenge. Now that the panic over 9/11 has largely subsided, some Americans worry as much about forfeiting cherished rights as they do about terrorism.

Momentum against the act began building in Congress last July, when Rep. C.L. "Butch" Otter, R-Idaho, won overwhelming support for an amendment to limit use of the law's "delayed notice" section. That provision allows the government to ask a judge to delay telling people that their homes have been subjected to a secret search known as a "sneak and peak."

The vote reflected the emergence of an unusual coalition of conservative Republicans and civil libertarians who are concerned about the act's powers.

Until the vote, Otter says, Justice officials had ignored some conservatives' concerns. "I don't believe they appreciated what we were hearing in our home districts," he says. "Congress made a bad law ... and needs to fix it."

Ashcroft defends law

Ashcroft set the tone for his defense of the act in December 2001, when he said critics "only aid terrorists" when they attack it.

Since then, critics say, Ashcroft has been a lightning rod for the administration's unpopular policies.

The poll shows that Ashcroft's popularity rating, like those of Bush and other administration leaders, has slipped during the past year. But the survey also suggests that Americans trust Ashcroft more than the ACLU to balance national security and civil liberties.

Last year, he promoted the act in speeches to law enforcement. In Boise, he suggested that the law led to 515 deportations of mostly Middle Easterners with "links to the Sept. 11 investigation." Actually, the only tie they had to the investigation was that they were taken into custody during the probe. None was charged with a 9/11-related offense; all were deported for immigration violations.

In playing down the Patriot Act's powers, Ashcroft says that it amounted to "incremental" tinkering with existing laws and gave counterterrorism agents access to the same tools that are available to those investigating criminal cases.

But the law did more than that. It eliminated barriers in place since 1978 that kept agents involved in criminal probes from benefiting from intelligence investigations, which are subject to lower standards for gathering evidence. To do surveillance, agents in intelligence probes do not have to show that an offense has been committed, as they must do in criminal cases.

Critics seize opening

Rep. F. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee and a defender of the act, says Justice officials gave the ACLU an opening to attack the law by initially being secretive about how they were using it.

It wasn't until last fall that Ashcroft revealed that the "libraries" provision hadn't been used. It allows the FBI to get secret court orders for records it says it needs in terrorism or intelligence probes.

Besides targeting Ashcroft, the ACLU's strategy is aimed at revisiting battles it lost when Congress authorized covert wiretaps in criminal cases in 1968, and when it created a secret court in 1978 to oversee domestic spy probes.

On its Web site, the ACLU glosses over legal standards for subpoenas, warrants and wiretaps that were set decades ago and makes it seem that the Patriot Act created them. It also says judicial oversight of the act is "non-existent" because it requires that FBI requests for records "shall" be granted.

Judges' roles in overseeing agents' activities were reduced by some parts of the Patriot Act. But the word "shall" appears similarly throughout the U.S. criminal code. It doesn't mean that judges can't question agents before granting warrants or other court orders.

The ACLU also says that FBI agents can spy on people "because they don't like" the books they read or the Web sites they visit. But since 1978, the FBI has been barred from investigating U.S. citizens "solely" for First Amendment free-speech activities. The Patriot Act has the same language.

Charles Mitchell, the ACLU's legislative counsel, defends the group's doomsday warnings. "It may be an extreme case of what might happen, but it's possible under overly broad statutes."

Sen. Joseph Biden, D-Del., who supports most of the act, says the administration's policies are harming the USA's reputation for fairness while the ACLU's strategy threatens support for tools that U.S. agents need to prevent attacks. "It's always a disservice when you confuse the public," he says. "They are entitled to straight answers."